QUICK CREDIT & INVESTMENT MICRO CREDIT VRS FUMESUA (A2/113/2024) [2024] GHADC 291 (18 September 2024)

IN THE DISTRICT COURT HELD AT EJISU, ASHANTI ON WEDNESDAY THE 18TH DAY OF SEPTEMBER 2024 BEFORE HER HONOUR ROSEMARY EDITH HAYFORD, (MRS.) (CIRCUIT COURT JUDGE) SITTING AS ADDITIONAL MAGISTRATE. __________________________________________________________________ SUIT NUMBER A2/113/2024 QUICK CREDIT & INVESTMENT - PLAINTIFF MICRO CREDIT V NICHOLAS AMOAKO - DEFENDANT FUMESUA ……………………………………………………………………………………………………… ………………………. TIME: 11.30 AM PLAINTIFF - PRESENT DEFENDANT - ABSENT __________________________________________________________________ JUDGMENT Plaintiff, a non-bank financial institution instituted the instant suit against Defendant on the 13th of February, 2024 for the following reliefs: i. Cash the sum of Two Thousand and Ninety Cedis (GH₵2,090.00) being the outstanding balance of the loan facility which Defendant procured on or about 15th September 2023 1 and which Defendant promised to pay on 15th December, 2023 but has failed to pay despite repeated demands. ii. Interest on the said amount at the prevailing bank rate from 15th September, 2023 till the date of final payment iii. Such further Order(s) as this Honourable Court may deem fit. When the matter came on for trial on the 7th of May, 2024, the defendant failed to appear in court to defend the action. Pursuant to Order 25 rule 1(2) of CI 59 which stipulates that where an action is called for trial and a party fails to attend the trial magistrate may where the Plaintiff attends and the defendant fails to attend dismiss the counterclaim, if any and allow the plaintiff to prove his claim, the court having satisfied itself that due process had been followed and all the processes had been served on the defendant, allowed the Plaintiff to prove its case. THE PLAINTIFF’S CASE It is the case of the Plaintiff that it is a Money Lending Financial Institution registered under the laws of Ghana. The defendant procured a loan facility from the Plaintiff’s Institution on the 15th of September, 2023 with a promise to repay same with interest by the 15th of December, 2023. However, Defendant has failed to honour same and all efforts by Plaintiff to get Defendant to pay same have proved futile hence this claim. At the end of the trial, the issue below was set down for determination Whether or not the Plaintiff is entitled to recover from the defendant the sum of GH₵2,090.00 being the outstanding balance of the loan facility the defendant procured from the Plaintiff. 2 APPLICATION OF THE LAW In every civil suit the burden of persuasion and proof lies on the party who asserts the affirmative of his case and the standard of proof required of him is proof by a preponderance of probabilities as provided for under section 12 of the Evidence Act 1975 NRCD 323. Thus, the plaintiff who is making a claim against the defendant is required under section 11 (1) of the Evidence Act to lead sufficient evidence in proof of his case to compel a ruling in his favour. In the case of Ababio v Akwasi IV [1994-95] GBR 774 the court reiterated the nature of the burden on a party required to prove an issue asserted in his pleadings as follows: “The general principle of law is that it is the duty of a plaintiff to prove his case as he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not he loses on that particular issue.” EVALUATION OF THE EVIDENCE AND DECISION OF THE COURT Richmond Appiah, the Recovery Executive of the Plaintiff Company testified on behalf of the company. He tendered the Power of Attorney given to him by the company to testify on its behalf as Exhibit “A”. The Company’s license to operate as a non-Bank Money Lending Financial Institution was also tendered as Exhibit “B”. It is the case of 3 the witness that the defendant was their customer and that she entered into an agreement with the Plaintiff for a loan facility. The Loan Facility Agreement between the Plaintiff Company and Defendant was tendered and admitted as Exhibit “C”. From Exhibit “C” the agreement was executed on the 15th of September, 2023 and the principal amount given to Defendant was GH₵2,000. The interest on the said amount was GH₵720 and the repayment period was 13 weeks. The commencement date was the 22nd of September, 2023 and by the 15th of December, 2023 Defendant should have finished paying the principal and interest. The weekly amount to be paid was GH₵210.00 and this was supposed to be done through a process by dialling the short code *779#. The loan repayment process was tendered as Exhibit “D”. It is the case of the witness that the defendant after taking the loan has so far made a payment of GH₵630.00 and has failed to pay the outstanding balance of GH₵2,090.00. The Defendant’s Statement of Account was tendered, admitted and marked as Exhibit “E”. The witness avers that despite persistent demands the Defendant has failed to pay the outstanding balance hence this action. It is worth noting that the evidence by the Plaintiff’s representative stood unchallenged. This is because the defendants failed to appear in court to defend the action despite all the processes having been served on her. The effect of the above unchallenged evidence of the Plaintiff is that the defendant acknowledges and admits same. See: Quagraine V Adams [1981] GLR 599, CA. and TAKORADI FLOUR MILLS VRS SAMIR (2005- 2006) SCGLR 882. In the instant case, the defendant was given the opportunity to be heard but he failed to appear in court. Therefore, he cannot say that the audi alteram pattem rule has been breached. It is trite that where a party is given the opportunity to be heard and he fails 4 to take it, he cannot complain that he has not been heard or there is a breach of any rule of natural justice. From Exhibit “B” it is not in doubt that the business is a registered entity and that it has obtained a licence from the Bank of Ghana to operate as a non-bank Money Lending Financial Institution. Exhibit “C” the loan agreement also bores the signature of the Defendant and this was guaranteed by one Baffour Awuah. Exhibit “E” clearly shows the defendant's indebtedness as GH₵2,090.00. The defendant only made payments on three different occasions that is the 09/22/2023; 12/08/2023 and 12/13/2023 respectively and has failed to pay the remaining balance. With the strong document evidence presented by the Plaintiff, this action should succeed. I find from Exhibit “C” that a loan agreement existed between the parties. I further find that Defendant accepted all the terms and conditions of the said loan agreement and is therefore bound to pay the outstanding balance. Having considered the facts and evidence adduced so far by Plaintiff, it is my considered view that the evidence of Plaintiff is cogent and credible, accordingly the action must succeed. I, therefore, enter judgment in favour of the plaintiff in the sum of Two Thousand and Ninety Ghana Cedis (GH₵2,090.00) being the outstanding balance of the loan facility the defendant procured from the Plaintiff since 15th September, 2023. The Defendant is further ordered to pay interest on the said sum of GH₵2,090.00 at the prevailing bank rate from 15th September, 2023 till the date of final payment I award cost of GH₵600.00 in favour of the Plaintiff. H/H ROSEMARY EDITH HAYFORD (MRS.) CIRCUIT COURT JUDGE 5 (SITTING AS ADDITIONAL MAGISTRATE) 6